Robins v. McClure

The question to be determined in this case is whether John S. McClure, the defendant and executor under the last will and testament of his wife, Caroline McClure, is entitled to that portion of the estate of the testatrix which by her will was bequeathed to her brother, Wright Eobins, and

The testatrix, by her will, devised and bequeathed to her husband certain real estate and personal property, and also one-half of the residue of her estate, both real and personal, absolutely. The remainder, she gave to her brother, Wright Robins, and her sister, Mrs. Elizabeth Garter, to be equally divided between them. She left no descendants or ancestors. The residuary estate consisted solely of personal property. Her husband qualified as executor, and claims to be entitled to that portion of the estate which is lapsed, under the common law, by virtue of Ms marital rights.

The plaintiff claims, as one of the next of Mn and heirs at law, being a son of a deceased brother of the testatrix, Isaac Robins, an interest in such unbeqneathed personal property, • and brings this action on behalf of himself and for the benefit of such next of kin and heirs at law as will come in and contribute to the expenses thereof.

By the common law the husband became entitled to that portion of his wife’s personal property of which she was actually possessed at the time of her marriage, or which came to her during coverture. In case of the wife’s death prior to that of her-husband he was authorized to take out letters of administration upon her estate, and, as administrator, after the payment of her debts, if any there were, he retained and became the owner of the assets remaining in his hands as such administrator under the practice then existing, by means of which, before the statute of distributions, the administrator converted and appropriated the assets in his hands to Ms own use. A contest arose between the ecclesiastical and temporal courts concerning the right of the administrator to thus appropriate the funds, which contest was finally settled by the passage of the statute of distributions (22 Car. II, chap. 10), and as doubt still existed in regard to the rights of the husband, an explanatory act (23 Car. II, chap. 3) was passed, by section 25, of which it was declared that this statute should not be construed to extend to the estates of femes covert dying intestate, but

The rule of the common law, which authorized the husband to hold the property of his wife, by virtue of administration, has been extended in this State, so as to entitle him to hold the same also by virtue of his marital rights, and numerous cases sustain this doctrine. In the case of Ransom v. Nichols ( 22 N. Y. 110 ], it was held that, where a married woman, possessed of separate personal estate, dies without having made any disposition of it in her life-time, or by way of testamentary appointment, the title thereto vests in her surviving husband, and cannot be affected by the granting of administration upon her estate to any other person. In the case cited, letters of administration had been taken out by a third person upon the wife’s estate, and an action was brought against the maker of a note to recover the amount of the same, which note was originally » given to the deceased wife, and afterward renewed payable to the husband and held by him. It appeared upon the trial that the amount of the note had been settled with the husband and taken up and canceled. It is said in the opinion : “The property, then, in this case, stands precisely upon the footing of choses in action of the wife, which have not been reduced to possession during the coverture. In this event the husband has the right to recover and enjoy them as his own, either as an incident to the marital relation and as flowing from it, or as an incident to his right of administration upon her estate; and for all practical purposes, it is immaterial to which source this right should be referred. This right of administration is secured primarily to the husband by the statute, and indeed, according to some authorities, it exists in the husband Jure mo/riti, and wholly irrespective of any statutory provisions upon the subject.” It will be noticed that the husband did not administer upon the estate of his wife, and hence it was claimed that he had no authority to interfere with her assets or to settle with the defendant who was the maker of the note. The decision expressly overrules this position and upholds his claim by virtue of his marital rights.

In Olmsted v. Keyes ( 85 N. Y. 602 ) the rule laid down in the cases cited is fully upheld. It is said, in the opinion by Earl, J., that “ all the choses of the wife, not reduced to possession during the joint lives, by the common law, passed to the husband upon her death. * * * He may then release them or take payment of them without administration, if he can get payment. If administration is needed to reduce the choses to possession he is entitled to it, and if there are no debts the administration is solely for his benefit. If, after his wife’s death, the husband does not release, assign or reduce to possession her choses in action during his life-time, then after his death his personal representatives are entitled to administration upon them for the benefit of his estate as part of his assets.” (See,

In that case no notice is taken of the decisions of this court already cited, which had previously been made and in which it was laid down, as we have seen, that the husband, at common law, became vested with all the personal property of his wife by virtue of the marital relation and not solely as administrator, and as these cases are not considered or discussed in the opinion, and no dissent expressed in reference to the same, the rule therein stated cannot be regarded as overruled or in any way affected or impaired. Until this is done by an authoritative decision of this court they must stand as the settled law of the State applicable to cases involving the same or any similar question.

We are not referred to any case in the English reports where the rule of the common law is stated exactly and in the precise form as in Barnes v. Underwood (supra).

In Fleet v. Perrins, which was first reported in- L. R., 3 Q. B. 536, and afterward on appeal in L. R., 4 Q. B. 500, it was held that, where the defendant received money from a third person, to be appropriated to the use of a married woman, and he wrote telling her he held the money at her disposal and the wife died, and then her husband; and the wife’s administratrix sued the defendant for money had and received to the use of

In the case last cited the distinct objection was taken that the action could not be maintained by the plaintiff as administratrix of the wife, on the ground that it was for money received by the defendant for the wife during coverture, and that, as her husband survived her, the administratrix of the husband was alone entitled to sue for the recovery of it. The decision in this case sustains the . doctrine, no doubt, that, where the husband has not interfered with the choses in action of the wife during her life, the same pass to her next, of kin and that his representatives, upon his death, after the death of the wife, have no right thereto as a part of his estate to which he was entitled by virtue of the marital relation.

While it is nowhere laid down in the case last cited that the husband who survives the wife is entitled to her personal estate as administrator and not by virtue of the marital relation, the conclusion arrived at is nevertheless in conflict with the current decisions of the courts of this State, as we have seen, and it should not be followed.

The rule of the common law, as explained by these decisions, was fully recognized by the provisions of the Revised Statutes.

The husband was solely entitled to letters of administration upon his wife’s estate, and if he failed to take out letters he was presumed to have assets in his hands sufficient to pay her debts, and was held liable therefor; and if he died leaving any assets of his wife unadministered, they passed to his executors or administrators as part of his personal estate, but subject to her debts. (2 R. S. 75, § 29). If any one, else administered the husband was entitled to the assets which' remained after the payment of debts.. (2 R. S. 75, § 30). And it was further provided that the statute of distribution should not apply to the personal estate of married women, but it was declared that their husbands might demand, recover and enjoy the same as they are entitled by the rules of the common law. (2 R. S. 98,

The first enactment (Chap. 200, Laws of 1848, as amended by chap. 375, Laws of 1849) declared that the wife’s property should not be subject to the disposal of her husband or liable for his debts, but should continue her sole and separate property as if she were a single female, and she was empowered to take and hold property and convey and devise the same as if she were unmarried. By chapter 576, Laws of 1853, the husband was exempted from the payment of his' wife’s debts contracted before her marriage. By chapter 90, Laws of 1860, and by chapter 172, Laws of 1862, other provisions were made in conformity with the previous enactments, the effect of which was to separate the estate of a married woman from the control of her husband, and confer upon her the same rights as if she were unmarried, and relieve the husband from the liability previously existing for the payment of her debts. Then followed chapter 782, Laws of 1867, which contained other provisions of a similar character, and among other things an amendment to section 79 of the Revised Statutes (supra), by the repeal of its former provisions, and making it read as follows: “ § 79. The preceding provisions respecting the distributions of estates shall apply to the personal estates of married woman dying, leaving descendants them surviving; and the husband of any such deceased married woman shall be entitled to the same distributive share in the personal estate of his wife to which a widow is entitled in the personal estate of her husband, by the provisions of this chapter, and no more.” By section 11 of the same act, section 30 of the Revised Statutes (supra), was repealed.

The provisions of the statutes to which we have referred were the subject of consideration in Barnes v. Underwood (supra), and it was there held, that the amendment of the seventy-ninth section of the statute of distribution in 1867, did not affect the right of the husband to administration and enjoyment of his deceased wife’s personal estate, except in the case therein specified, of her dying leaving descendants. Church, Ch. J., after discussing the effect of section-79 as amended, and the repeal of section 30, says: “ It is equally clear that; if that section had been originally enacted in the form as amended in 1867, the rights of the husband would not have been affected by it, except in the single case, therein specified, of the wife’s dying leaving descendants, and, in that case, the husband would have been limited to the distribution thei’ein specified; and

As the testatrix in the case at bar left no descendants, her husband became entitled to the same interest in her personal property as though the amendment of section 79 and the repeal of section 30 had not been made, either as administrator, if he was authorized "to administer upon her effects, or, if not, as we have seen, by virtue of his marital rights under the decisions of the courts in this State. That he was unable to administer by reason of his being executor under his wife’s will could make no difference, as the law established his rights independent of his right to administer. In either case the property belonged to him, and he could not be deprived of his rights because his wife left a will in which provision was made for him, and he was appointed executor and acts as such and accepts a devise and bequest in his favor under the will.

If the husband had not accepted the appointment of executor under the will and refused to qualify, and if an administrator had been appointed with the will annexed, could it be said that he waived his rights as husband at common law and that the estate thereby passed to the next of kin or heirs at law of the deceased ? The amendment of section 79 only affected his interest where the wife died leaving descendants, and under that provision alone it cannot be claimed that the husband would be deprived of his rights at common law, and although the repeal of section 30 left no provision for the payment of assets to the husband by the administrator, as the Married Woman’s Acts of 1848 and 1849, as we have seen and as the authorities hold (Ransom v. Nichols, 22 N. Y. 110 ; Ryder v. Hulse, 24 id. 372; Barnes v. Underwood, 47 id. 351; Vallance v. Bausch, 8 Abb. Pr. 368 ; Fry v. Smith, 10

While entitled to her estate at common law, there would seem to be no valid ground for holding that he should be deprived of the same if unfortunately, by reason of incompetency, he was unable to administer. In the case considered the husband would have been competent to act as administrator but for the will of his deceased wife, and having acted as executor he holds the portion of the estate as to which she died intestate, in his hands as such. Letters of administration, therefore, are not necessary to protect his interest, and no reason would seem to exist why, as at common law he was entitled to her estate, he could not hold that portion which lapsed by reason of her intestacy in regard to the same.

It may also be remarked that no person but the husband has administered upon the estate of the testatrix, nor was any person in opposition to him entitled to letters of administration. As executor for all purposes of administration he has exercised control over the property of his deceased wife. Although in name there is a difference between executor and administrator, there is really none in fact and in law, and each has control over the personal estate and the distribution of the same. His administration as executor under the will is in most respects the same as if he was an administrator under the statute, and as the portion undisposed of by the testatrix belongs to him, no reason exists why he should not retain it. This view

The appellant’s counsel relies upon the case of Sedgwick v. Stanton ( 14 N. Y. 289 ), as authority for the position that where a statute affirmative of the common law is abolished, the common law must likewise be abolished. In that case the question presented was in reference to the effect of the repeal of a statute in regard to maintenance, and the court held that the repeal of the statute abolished the common law of which it was declaratory. It will be seen that this related to a particular offense against a law establishing a crime, and under such circumstances there is the strongest reason for holding that when the statute was repealed no crime existed according to law. Section 30 of the Revised Statutes, which has been referred to, was only one of a series of provisions in regard to the distribution of property, and was evidently repealed be-cause it came in conflict with section 79, as amended by the same act that repealed section 30. As it is manifest that it was repealed for the purpose of harmonizing different provisions of law, and other general provisions were left in force, and as to some of these provisions the common law was held to prevail by the decision of the court, the case cited is not in point.

There is nothing, we think, in the decisions or in the statutes which sustains the position that the effect of the Married Woman’s Acts, which authorize her to make a will, is to extinguish the husband’s right to any portion of her personal estate, except so much thereof as the will gives him, where, by the lapse of a legacy, she dies intestate as to some part thereof. In such a case the portion which becomes lapsed is undisposed of,

The doctrine of election has no application to this case.

The judgment should be affirmed.

(dissenting). It must be conceded that' the

tendency of decisions in this court is to uphold the'rights of the -husband as they existed at common law, and if the facts before us were like those on which the decisions stand, I should feel constrained to assent to the affirmance of the judgment. They are, however, not identical, and I feel at liberty to dissent, putting my vote on what seems to me the true construction of the statutes relating to married women. By their express terms the wife’s estate was to continue her sole and separate property as if she were a single female. (Laws of 1848, chap. 200; 1849, chap. 375; 1860, chap. 90.) As to it, therefore, she is to be regarded as unmarried, and I am unable to see how any portion could pass to her husband jure mwriti. The general contention in support of the judgment is that the quality of separate property is extinguished by the wife’s death. I cannot so read the statutes, nor do I find therein any words of limitation. At common law the woman, by marriage, became merged or incorporated in the man, and the same event vested in him, as by gift, her property. On the other hand, the statute (1848, supra,) not only permits her to retain it with like effect as if unmarried, but expressly declares that it shall not be subject to the disposal of her husband. By these words the intention of the legislature is made plain, and it carries out the title of that act, which is “ for the more effectual protection of the property of married

Rapallo, Andrews and Earl, JJ., concur with Miller, J.; Danforth, J., dissents; Ruger, Ch. J., and Finch, J., do not vote.

Judgment affirmed.